State v. Phillips

• Decision Date: 08 April 1903
• Parties: STATE OF IOWA v. JACK PHILLIPS, Appellant
• Court: Iowa Supreme Court

94 N.W. 229

119 Iowa 652

STATE OF IOWA v. JACK PHILLIPS, Appellant

Supreme Court of Iowa, Des Moines

April 8, 1903

Appeal from Wapello District Court.--HON. FRANK W. EICHELBERGER Judge.

THE defendant, having been indicted for murder in the first degree, and convicted of manslaughter, appeals.--Reversed.

Judgment REVERSED and cause remanded.

I. H Tomlinson and M. A. McCoid for appellant.

Chas W. Mullan, Attorney General, and Chas. A. Van Vleck, Assistant Attorney General, for the State.

OPINION

LADD, J.

The accused was acting as special policeman in the town of Eldon during the period of the fair, and on the 4th day of September, 1900, had cautioned the deceased, Clarence Debard, who was somewhat intoxicated, against "kicking up a disturbance" and returning to the saloon. Notwithstanding this, the deceased undertook to return, but seems to have stopped on the way at a wienerwurst stand, and, while there, grabbed for, but did not reach, a knife. Thereupon he was put under arrest by defendant and taken toward the jail, all the time making resistance by jerking and trying to get away, and also using profane and threatening language. This continued until they reached a point in front of a printing office, where the defendant struck the deceased over the head with a club or "billy" such as is usually carried by policemen. The evidence is in conflict as to whether Debard had broken loose at the time, some of the witnesses testifying that there was no halt, and that the prisoner had not broken away, and others that he had, and had turned upon the defendant with his fists. In any event, he fell to the ground on one hip and his hand, and, though repeatedly requested, refused to arise and go with the officer. As the defendant walked around him, Debard turned, attempting to guard himself from seizure, and, as the officer reached for his shoulder, he kicked at him, and was dealt another blow on the head. The defendant denied striking the deceased more than twice, and in this is somewhat corroborated; but several eyewitnesses testified that he beat him on the head three or four times, and that, when last hit, deceased threw back his head, and fell to the ground unconscious. He was then carried to the jail by defendant and others, and died the next morning. From the time of his arrest until the last blow, the deceased was violent in manner and in speech, declaring that "there was not enough * * * officers in Eldon to take him to jail"; that "the officers could beat his head off, but could not take him"; that he would whip defendant if he would discard the "billy." Some of the evidence was to the effect that the first blow was very severe, and that the last ended all conscious resistance. Undoubtedly, the conduct of Debard was extremely exasperating, but his only offense prior to arrest was drunkenness and disorderly conduct.

The court, in the sixth paragraph of the charge, instructed the jury that: "The defendant had the right to use such a degree of force as was reasonably necessary to reduce said Debard to submission; and if resistance, if any there was, was violent and determined, the defendant was not required to make nice calculation as to the degree of force necessary to accomplish the purpose. But, to excuse the taking of life in making an arrest in cases of misdemeanor, it must be shown that the killing was necessary to effect the object. Hence, if you find from the evidence in this case beyond a reasonable doubt that the defendant, whilst making the arrest of Debard, struck him with a club or billy, and that Debard died from the effects of such blow, and you further find that it was not necessary to strike and kill Debard, if he did, in order to effect such arrest, you will find the defendant guilty of manslaughter."

This general statement of the right of the officer finds support in many authorities. See State v. Garrett, 60 N.C. 144 (84 Am. Dec. 359); State v. Dierberger, 96 Mo. 666 (10 S.W. 168, 9 Am. St. Rep. 380); 2 Bishop's New Criminal Law, section 650; 1 Bishop's Criminal Procedure, section 161; 1 Wharton's Criminal Law, 402 et seg; note to Hawkins v. Com., 14 B. Mon. 395 (Ky.) (61 Am. Dec. 163). On the other hand, some authorities, while admitting that the officer is never required to retreat, and may meet force with force, seem to hold that in arresting for a misdemeanor only, as well as preventing the escape of a person after being arrested therefor, life may not be taken, even though necessary to make the arrest or prevent the escape, save when the officer has the reasonable apprehension of peril to his own life or great bodily harm. 1 McClain, Criminal Law, section 298; Thomas v. Kinkead, 55 Ark. 502 (18 S.W. 854, 15 L.R.A. 558, 29 Am. St. Rep. 68); Brown v. Weaver, 76 Miss. 7 (23 So. 388, 42 L.R.A. 423, 71 Am. St. Rep. 512); Reneau v. State, 70 Tenn. 720, 2 Lea 720 (31 Am. Rep. 626); U.S. v. Clark, (C. C.) 31 F. 710;) 2 Am. & Eng. Ency. Law, 849, and cases cited. But the correctness of the instruction in this respect is not challenged, for it was, if anything, too favorable to the defendant.

Appellant does insist, however, that it is defective in that (1) it requires a finding of absolute necessity in order to justify the taking of Debard's life, and (2) that it excludes all question with respect to the result being accidental. The only answer to the first of these is the caution concerning nice distinctions as to the degree of the force employed. But this is followed by the unqualified statement that the killing, to be excusable, must have been necessary, and that, before the jury could convict, it must be found to have been unnecessary. Certainly,...